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How to Identify an Authentic Joint Real Estate Development Contract

Joint real estate developments often end up in dispute; the potential for such disputes generally exists in the features of joint real estate development contracts.

The Supreme People's Court’s Interpretations on the Low Application in the Trial of Contract Dispute Cases Related to the Right to Use State-Owned Land (Interpretations) that became effective on August 1, 2005, included a specific definition concerning joint real estate development contracts that specifies four features that render other types of real estate contracts invalid as joint development contracts. Below we analyze the four features to help investors identify an authentic and valid joint real estate development contract.

1. Land Use Right Transfer Contract

In accordance with “Article 24” of the Interpretations, “If the land use right transferor under a real estate joint development contract does not bear the risks arising from a real estate development but just shares a certain portion of the profit, the contract shall be deemed a land-use-right-transfer contract.”

In fact, this situation is just a special form for transferring land-use rights at a certain price. However, the Chinese Government has established some limitations on these types of land transfers. If a joint real estate development contract is later confirmed as a land-use-right-transfer contract, the parties shall amend or adjust the contract in accordance with relevant laws and regulations concerning land transfers.

2. Real Estate Trade Contract

In accordance with “Article 25” of the Interpretations, “If a party who provides capital under terms of a joint real estate development contract does not bear the risks arising from joint development but just get some houses built in return, the contract shall be deemed a real estate trade contract.” However, we should pay heed to the legal risks involved: when two parties enter into joint development contract, the development is in the primary stage only, and developers are not able to apply for a house trading certificate. In accordance with “Article 2” of the Interpretation on the Law Application in the Trial of Contract Dispute Cases Related to Commercial House Sales Contract, “If the seller has no house trading certificate, the trading contract shall be invalid. If the seller obtains a certificate before the suit, the contract shall be valid.” This regulation means the joint development contract might be invalid if it involves trading features in the absence of a trading certificate.

3. Loan Contract

In accord with “Article 26” of the Interpretations, “If the party that provides capital in the joint real estate development contract does not bear the risks arising from joint development but gets a certain part of the proceeds in return only, this contract shall be deemed a loan contract.”

Such contracts are loan contracts between corporations, in fact. In accordance with clause 4.2 of the Interpretation on the Legal Problems in the Trial of Contract Dispute Cases Related to Joint Operation Contracts, “If one party invests money in the joint project but does not participate in management or bear the risks and gets loan interest or certain amount of money in return, the contract shall be deemed a loan contract in name of a joint development.” Since different courts in different regions hold various opinions about such contracts, the land provider may face legal risks where the capital involved must be returned to the lender with interest equal to the standard of banks.

4. Real Estate Leasing Contract

  In accord with “Article 27” of the Interpretations, “If a party that provides capital under a joint real estate development contract does not bear the risks arising from the joint development but get a returns in the form of leasing or using the houses to be built only, such contracts shall be deemed real estate leasing contracts.”

In fact, this kind of contract is a special form of a land-use-right transfer, referred to as a “pre-lease,” which means that leasing relationships are formed before the completion inspection of the works or before obtaining a house ownership certificate. The tenant can enjoy a lease right only after the completion inspection. To now, China has had no enforced rules, regulations or laws on pre-lease, but there are some norms or specifications in local areas, such as the House Leasing Administrative Rules in Tianjin, wherein clause 9.2 specifies that pre-leases shall be in accordance with regulations and rules on relevant commercial house pre-sales.

Therefore, we should clarify the real features of the joint development contract during real estate development. Relevant laws and regulations shall be taken into consideration to avoid the legal risks after the features are correctly identified.

如何识别“名不副实”的房地产合作开发

1、名为合作开发的房地产合同，实为土地使用权转让合同

根据《解释》中第24条的规定：“合作开发房地产合同约定提供土地使用权的当事人不承担经营风险，只收取固定利益的，应当认定为土地使用权转让合同。”

这种情况实质是土地使用权有偿转让的一种特殊形式，而中国对于土地使用权的流转是有一定条件和限制的，因此，如果合作开发合同被认定为土地使用权转让合同，则需要根据土地转让方面相关的法律法规进行规范。

2、名为合作开发房地产合同，实为房屋买卖合同

根据《解释》中第25条的规定：“合作开发房地产合同约定提供资金的当事人不承担经营风险，只分配固定数量房屋的，应当认定为房屋买卖合同。”但在合作开发的房地产合同签订时，实际项目通常处于前期开发阶段，尚未取得房屋预售许可证，而根据中国最高人民法院《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》第2条规定：“出卖人未取得商品房预售许可证明，与买受人订立的商品房预售合同应当认定无效，但是在起诉前取得商品房预售许可证明的，可以认定为有效。”在这种情况下，实为房屋买卖合同的房地产开发合同则存在被认定无效的风险。

3、名为合作开发房地产合同，实为借款合同

根据《解释》中第26条的规定：“合作开发房地产合同约定提供资金的当事人不承担经营风险，只收取固定数额货币的，应当认定为借款合同。”

这种合同实际上是企业间的资金借贷。根据中国最高人民法院《关于审理联营合同纠纷案件若干问题的解答》第4条第2款的规定：“企业法人、事业法人作为联营一方向联营体投资，但不参加共同经营，也不承担联营的风险责任，不论盈亏均按期收回本息，或者按期收取固定利润的，是明为联赢，实为借贷，违反了有关金融法规，应当确认合同无效。”在目前的实践中，因各地法院对此持不同态度，所以各地方会面对因合同无效而需向投资方退回全部资金并处以相当于银行利息的罚款的风险。

4、名为合作开发房地产合同，实为房屋租赁的合同

根据《解释》中第27条的规定：“合作开发房地产合同约定提供资金的当事人不承担经营风险，只以租赁或者其他形式使用房屋的，应当认定为房屋租赁合同。”

这种合同实际上属于房屋使用权转让的一种特殊形式——预租，即在房屋竣工验收前或取得房屋所有权之前形成的租赁关系，承租人的租赁权将在房屋竣工后得到实现。在目前中国的法律和行政法规中并无限制预租的强制性规定，不过某些地方就预租现象还是有所规范的，比如天津市在《天津市房屋租赁管理规定》第9条第2款中就规定：“出租在建房屋的，应当符合国家和本市有关商品房预售的条件。”

在房地产合作开发过程中，要注意甄别以上4种“名不符实”的合作开发合同，依据合同的性质确定出适用的法律法规进行规范，并对预计产生的相关风险提前进行防范。

Wang Jihong , Lawyer

Professional fields: Urban Infrastructure

Development and

Real Estate

Environmental and Resource Protection

Government

Legal Affairs

Ms. Wang is a renowned lawyer in the field of urban infrastructure development in China. She has offered legal services to a number of national major construction projects, especially concession projects. These projects cover multiple fields, including public utilities construction projects, rail transportation projects, highway and bridge projects, energy projects and city planning projects such as CCTV New Site, The National Museum of China and the National Indoor Stadium.

Tel: +86 10 8225 5610  

E-mail: jwbj@vtlaw.cn